WASHINGTON, Jan. 13, 2017 - The Supreme Court will decide whether the 6th Circuit Court of Appeals was right to assert jurisdiction over legal challenges to the “waters of the U.S.” rule.

The court decided today to grant a petition seeking review of the 6th Circuit’s fractured decision, in which that court narrowly determined that it should adjudicate the numerous WOTUS challenges.

The National Association of Manufacturers (NAM) filed the petition in September challenging that decision, noting that even Circuit Judge David McKeague, who agreed with the federal government, expressed serious doubts about the government’s reasoning.

The Clean Water Act gives federal appeals courts “original jurisdiction” to review certain categories of EPA decisions to implement the law. The federal government argued before the appeals court and in response to the NAM petition that WOTUS would fall into one of those categories – “actions “approving or promulgating any effluent limitation or other limitation.”

But NAM said that the WOTUS rule “is no ‘limitation’ at all. The agencies concede that it is ‘not self-executing’ but merely ‘helps to delineate the practical scope’ of the (Clean Water) Act.”

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The National Cattlemen’s Beef Association hailed the Supreme Court decision to review the jurisdictional issue. “It shows that the court has a continued interest in private property rights and we look forward to oral arguments this spring,” Scott Yager, the group’s environmental counsel, said.

And the Pacific Legal Foundation, which is involved in the 6th Circuit and the Supreme Court litigation, said that allowing the 6th Circuit decision to stand “would prohibit federal trial courts around the country from hearing lawsuits from aggrieved landowners and other members of the regulated public; instead, such challenges would effectively be concentrated in the first appellate court to consider a challenge.”

PLF is representing farmers, ranchers and developers in the Supreme Court case. It said determining the proper venue “is an important question because it could affect how and where plaintiffs may challenge questionable rulemaking under the Clean Water Act in future cases, and perhaps other laws as well.”


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